11-1404-cv
Lam v. Sephora USA Inc., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second
Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl
Street, in the City of New York, on the 18th day of July two thousand twelve.
Present: AMALYA L. KEARSE,
SUSAN L. CARNEY,
J. CLIFFORD WALLACE,*
Circuit Judges.
___________________________________________________________
OUSSEYNOU LAM,
Plaintiff-Appellant,
-v- No. 11-1404-cv
SEPHORA USA INC., TANIA SEDA, KEN PIEPER,
Defendants-Appellees.
Appearing for Appellant: Rudy A. Dermesropian (Marshall B.
Bellovin, of counsel, on the brief), Ballon
Stoll Bader & Nadler, P.C., New York, NY.
*
The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
Appearing for Appellees: Jill L. Rosenberg (Andrew Livingston, Renee
Phillips, on the brief), Orrick, Herrington &
Sutcliffe LLP, New York, NY.
Appeal from the United States District Court for the Southern District of
New York (Hellerstein, Judge). ON CONSIDERATION WHEREOF, it is hereby
ORDERED, ADJUDGED, and DECREED that the judgment of the District Court
be and it hereby is AFFIRMED.
Plaintiff-Appellant Ousseynou Lam appeals from a March 2011 district court
order granting summary judgment in favor of Defendants-Appellees Sephora USA
Inc., Tania Seda, and Ken Pieper and dismissing Lam’s complaint. Lam brought
suit against defendants after he was discharged from his position as a Loss
Prevention Agent at a Sephora retail store. Lam claimed defendants maintained a
hostile work environment and wrongfully terminated him on account of his
Senegalese national origin and Muslim religion, in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq.; the New
York State Human Rights Law, N.Y. Exec. Law § 296 et seq.; and the New York
City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. Lam also asserted a
common law claim for intentional infliction of emotional distress and a claim under
the Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100
Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.). The district court
granted defendants’ motion for summary judgment as to Lam’s federal claims and
declined to exercise supplemental jurisdiction over his state and city claims. We
assume familiarity with the underlying facts, the procedural history, and the
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arguments raised on appeal, which we reference only as necessary to explain our
decision.
A district court’s grant of summary judgment is subject to our de novo review.
Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011). We affirm if, after
construing the evidence in the light most favorable to the non-moving party and
drawing all reasonable inferences in that party’s favor, “‘there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.’”
Id. (quoting Fed. R. Civ. P. 56(a)). However, “[t]he mere existence of a scintilla of
evidence in support of the plaintiff’s position [is] insufficient” to defeat a defendant’s
motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986).
We generally analyze Title VII claims under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Brown
v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). Under McDonnell Douglas,
the plaintiff is required to produce evidence showing that the prima facie elements
of his discrimination claim have been met, whereupon the “burden of production
shifts to the employer to articulate some legitimate, nondiscriminatory reason for
the termination.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 221 (2d Cir. 2004)
(internal quotation marks omitted). “If the employer carries this burden, the
burden shifts back to the plaintiff to demonstrate by competent evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Id. (internal quotation marks omitted).
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When a plaintiff alleges that both legitimate and illegitimate reasons
motivated an adverse employment action, we apply the “mixed-motive” framework
set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion).
See also 42 U.S.C. § 2000e-2(m). Under Price Waterhouse, “the plaintiff must
initially show that an impermissible criterion was in fact a ‘motivating’ or
‘substantial’ factor in the employment decision,” at which point “the burden shift[s]
to the employer to prove that it would have made the same decision absent the
discriminatory factor.” Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997) (other
internal quotation marks omitted); see also Sista v. CDC Ixis N. Am., Inc., 445 F.3d
161, 173 (2d Cir. 2006).
Lam makes two principal arguments on appeal. First, Lam asserts that he
has proffered sufficient evidence under the McDonnell Douglas standard to permit a
jury to find that defendants’ stated reason for terminating him was pretextual, and
that discrimination was the real reason. Second, Lam contends that the district
court erred in failing to analyze his discrimination claims under the “mixed-motive”
framework set forth in Price Waterhouse. Both arguments are unavailing.
The record amply supports defendants’ assertion that Lam was terminated
for repeatedly violating Sephora’s policies and procedures and for disobeying the
direct order of Ken Pieper, his supervisor, and Steve Onderdonk, Sephora’s Regional
Loss Prevention Director. The undisputed evidence shows that in performance
reviews and in verbal and written warnings dating from near the beginning of his
employment with Sephora in December 2001 until his termination in May 2006,
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Lam was repeatedly reprimanded for his failure to follow Sephora’s loss prevention
policies and procedures. Moreover, in the three months preceding his termination,
Lam received two serious warnings from Pieper regarding his performance. On
February 12, 2006, Pieper gave Lam a verbal warning after a Sephora customer
complained that Lam was following him around the store in a manner that,
according to Pieper, made the customer feel “very uncomfortable.” Then, on April
20, 2006, Pieper issued Lam a written warning because Lam failed to complete the
paperwork necessary to prosecute a shoplifter. In the written warning, Pieper
advised Lam that Lam could be terminated if his performance did not improve or if
he violated another Sephora policy or procedure.
Lam concedes that, following these two incidents, Pieper and Onderdonk
instructed him not to apprehend any more Sephora customers, and to focus instead
on assisting the customers. He also admits that on May 1, 2006, he disobeyed
those instructions by stopping a customer and falsely accusing that individual of
having Sephora merchandise in the pocket of his jacket—a stop that resulted in the
customer threatening to file a discrimination claim against Sephora. Finally, in his
response to defendants’ Local Civil Rule 56.1 Statement, Lam does not dispute that
soon after the May 1, 2006 incident, Pieper, Onderdonk, and Tania Seda terminated
Lam for violating Sephora’s loss prevention policies and for disobeying Pieper and
Onderdonk’s direct order not to make any more customer stops.
Notwithstanding these undisputed facts, Lam maintains that discrimination
was the real reason for—or, alternatively, that it played a substantial role in—his
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termination. Lam argues that Seda, who began working for Sephora as a store
manager approximately four months before Lam’s termination, was biased against
him. Lam does not dispute that defendants had identified problems with his work
performance long before Seda became a Sephora employee, nor does he allege that
Seda played a part in any of the verbal and written warnings that Lam received
prior to his termination. He asserts, however, that two remarks that he alleges
were made by Seda show her to have had a discriminatory state of mind with
regard to Lam. Defendants deny this characterization and accurately point out that
Lam has provided materially different accounts of both purported remarks by Seda
in his various submissions to the district court.
With regard to the first remark, Lam testified at his deposition that shortly
after Seda was hired, Lam told Seda, in response to her inquiry, that he was from
Senegal, and Seda told him that she was from Puerto Rico. After Lam stated that
he thought that Seda was actually from the Dominican Republic, Seda explained
that she was Puerto Rican and, therefore, unlike someone from the Dominican
Republican, she was a U.S. citizen. In a subsequent affidavit, however, Lam
asserted that in that same conversation, directly after Lam informed Seda that he
was from Senegal, she responded: “This country is not Africa, it is the United
States, and it belongs to the Americans and Puerto Ricans.” Given this
contradiction, the district court did not err in concluding that Lam’s new statement
was insufficient to overcome his prior deposition testimony and create a factual
issue that was genuine. See Perma Research & Development Co. v. Singer Co., 410
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F.2d 572, 578 (2d Cir. 1969). Moreover, even were we to credit Lam’s affidavit, this
sole comment—that the United States belongs to Americans and Puerto
Ricans—does not demonstrate that Seda was biased against people from Senegal,
nor does it permit the inference that Lam’s national origin played any role in his
termination.
With regard to the second alleged remark, Lam testified in his deposition
that, in early April 2006, after Seda saw Lam change into African clothing to attend
his mosque, he overheard Seda comment, “[T]his place is not the mosque, when I
come back from my vacation, I kick him out.” Such a statement might ordinarily
suggest that religion could have played a role in the decision to terminate Lam, at
least insofar as Seda’s involvement in that decision is concerned. We note that Lam
did not refer to Seda’s alleged pledge to “kick him out” at all in his complaint, his
affidavit, his memorandum of law in opposition to summary judgment in the
district court, his response to defendants’ Rule 56.1 statement, or when discussing
the relevant evidence of religious discrimination during oral argument before the
district court.1 Lam’s omission of the “I kick him out” statement from each of these
submissions—in which he stated only that Seda said, “[T]his is a workplace, not a
mosque”—was particularly striking in his attorney’s oral argument against
1
Lam maintains that any discrepancies in his testimony and in his submissions to the
district court are the result of his limited English skills. We can think of no reason why Lam would
be able, during his deposition, to describe in English certain statements that Seda allegedly made,
but would be unable to do the same, with the assistance of his attorney, in his affidavit and other
filings. Furthermore, Lam’s language deficiencies do not explain his failure, until his briefs on
appeal, to cite—or rely on in any way—what otherwise might be his strongest piece of evidence
against defendants, Seda’s alleged comment that she intended to “kick [Lam] out.”
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summary judgment in the district court. When the court observed that there was a
“disconnect” between the allegedly overheard statement and Lam’s termination, his
attorney made no effort to argue to the court that a connection between Seda’s
religious animus and Lam’s termination was inherent in Seda’s own juxtaposition
of her negative reference to the “mosque” and her alleged announcement, “I kick
him out.” Cf. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005)
(permitting evaluative assessment on summary judgment of the plaintiff’s varying
accounts “in the rare circumstance where the plaintiff relies almost exclusively on
his own testimony, much of which is contradictory and incomplete”). Lam, like the
plaintiff in Jeffreys, relies exclusively on his own testimony as to Seda’s mosque and
kick-him-out statement, despite the fact that his deposition testimony was that
Seda made that statement to three other Sephora employees who were known to
him. The record contains no indication that Lam made any effort to take the
depositions of any of those employees or that he asked the district court for more
time in order to do so.
Based on the foregoing, we conclude that Lam has failed to produce sufficient
evidence from which a reasonable jury could find that his termination “was more
likely than not a product of discriminatory animus.” Leibowitz v. Cornell Univ.,
584 F.3d 487, 504 (2d Cir. 2009). Because we determine that Lam has not made the
threshold showing that his religion or his national origin “was in fact a ‘motivating’
or ‘substantial’ factor” in his termination, Raskin, 125 F.3d at 60 (other internal
quotation marks omitted), we need not address Lam’s contention that the district
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court erred in failing specifically to analyze his claims under a “mixed-motive”
framework.
As to his hostile work environment claims and his claim under IRCA, Lam
has made no argument against an affirmance of the district court’s dismissal of
these claims. Nor does Lam challenge the district court’s decision declining to
exercise supplemental jurisdiction over his New York State, New York City, and
common law claims. He has therefore waived any challenge to these aspects of the
district court’s decision. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
We have considered Lam’s remaining arguments and conclude that they are
without merit. The judgment of the district court is therefore AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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